An Eagle Feather and an Historic Cross-Roads at Canada’s Supreme Court

During the Oct. 26 Lhatsassin Memorial Day ceremonies at Puntzi Lake, Chief Byron Louis of the Okanagan First Nation presented the Tsilhqot’in with a golden eagle’s feather.

Tsilhqot’in spiritual leader Cecil Grinder holds up the feather for the crowd to see. This feather began its journey in a ceremomy with the Mi’kmaq after a case on harvesting and selling eels went to the Supreme Court of Canada.

This feather has been on a long journey. It symbolizes the ongoing continent-wide struggle to have Canada honour with good faith both its treaties with the indigenous Peoples and its own constitutional recognition of indigenous rights.

This feather began its journey in 1999 as part of a ceremony honouring the Mi’kmaq People on the east coast. The Supreme Court of Canada had ruled then that, through peace and friendship treaties made with the Mi’kmaq in the 1760’s, the British Crown recognized a continuing indigenous right to a traditional economy. And also that indigenous rights are communal rights held by indigenous nations. The feather has crossed the country since on the front lines of the struggle for the recognition of aboriginal rights.

The feather is now on its way with the Tsilhqot’in to Ottawa. There, on Nov. 7, the Supreme Court of Canada will hear the Tsilhqot’in Nation’s case on the nature of aboriginal title. Continuously evolving, this monumental case has been in the courts for 23 years. The Tsilhqot’in have endured untold sacrifices and persevered against an uncompromising Canadian government determined to wear them down against what they know is morally wrong and the legacy of a staggering colonial injustice.

On behalf of Chief Byron Louis of the Okanagan First Nation, Cecil Grinder presents the feather to Joe Alphonse chairman of the Tsilhqot’in National Government during the Lhatsassin Memorial Day ceremonies. Lhatsassin Memorial Day is a national day of remembrance for the Tsilhqot’in Chiefs martyred by the Colony of British Columbia.

Among the issues now featured here is whether the aboriginal rights recognized under Canada’s constitution, (and which require the consent and accommodation of First Nations to alter,) apply only to small specific sites (like, say, salt licks, fishing stands or pit-houses occupied before 1846 when the British Crown first asserted a desire to acquire sovereign powers on the Pacific Shelf) or whether they apply more generally to whole territories. If it is decided along these lines in due course, the result will affect all First Nations.

Canada has never signed any political treaty with the Tsilhqot’in People. Logically, therefore, under a strict application of the rule of law, Tsilhqot’in law must remain the true law of the land until the Tsilhqot’in People consent to some constitutional change. And that law applied to a whole sovereign territory.

Nor have the Tsilhqot’in ever granted the Crown any broad underlying privilege to manage resources in their territory. Yet Crown officials act as if they did not need to consult the Tsilhqot’in when granting forest harvesting rights or licensing mines within Tsilhqot’in territory. And that is how this case began, over the harvesting of timber.

The Tsilhqot’in People lost the de facto sovereign control of their territory sometime after 1862. The expanding settler community then deliberately spread smallpox along prospective road routes to kill 70 to 90 percent of all the Tsilhqot’in in less than one year. While reacting to this ethnic cleansing exercise, Tsilhqot’in officials executed settlers convicted of spreading the disease, killed some settlers who had promised new epidemics, closed the prospective roads and expelled all the remaining settlers.

In the aftermath of this assertion of sovereign control by the Tsilhqot’in (obviously over the whole territory,) the Colony of British Columbia invited the Tsilhqot’in to a peace conference with the Governor. Colonial officials held out that the Governor there would recognize “the Head Tsilhqot’in War Leader” as “High Chief” in Tsilhqot’in territory. Effectively, this would have been a diplomatic recognition of the Tsilhqot’in regime under the custom of the country. At the promised conference, however, the Tsilhqot’in delegates were ambushed, thrown in chains, taken for show trials and martyred on Oct. 26, 1864. British institutions and English law then became imposed in Tsilhqot’in territory through a para-military occupation without the consent of the People.

Under these circumstances, it is hard to see how Canada has gained any moral right to govern in Tsilhqot’in territory, or to allocate timber harvesting rights and license mines. If the Tsilhqot’in People had the right to govern their whole territory before the advent of any colonial interest in British Columbia, as it is obvious on the face of it that they did, then, surely under both Tsilhqot’in and Canadians systems, they must still have that right.

A press release by the Tsilhqot’in National Government notes that the current case

“…is one of the most important First Nations court proceedings ever held in Canada. Canada stands on the edge of an historic choice as the outcome will shape the future relationship between Canada and all First Nations.”

In essence, Canada can begin finding a moral track to bring itself increasingly in line with indigenous laws, traditions and values or it can continue creating opportunities to marginalize and diminish the indigenous nations.

Chief Roger William of the Xeni Gwet’in, the plaintiff named in this historic case on behalf of the Xeni Gwet’in and the Tsilhqot’in People.

And so it is that this much travelled eagle feather will find its way to Ottawa, along with a bus load of elders, youth and community leaders (including Chief Roger William) who will bear witness to the proceedings on behalf of the Tsilhqot’in People.